| restricted audiences. (iv) they serve to stimulate commercialisation and distribution, whereas Indigenous concerns may be primarily to prohibit commercialisation and to restrict use and distribution. According to the 1994 COICA Statement: For members of Indigenous peoples, knowledge and determination of the use of resources are collective and inter-generational. No Indigenous population, whether of individuals or communities, nor the government, can sell or transfer ownership of resources which are the property of the people and which each generation has an obligation to safeguard for the next. (v) they recognise only market economic values, failing to consider spiritual, aesthetic, or cultural - or even local economic - values. Information or objects may have their greatest value to Indigenous peoples because of their ties with cultural identity and symbolic unity. (vi) they are subject to manipulation to economic interests that wield political power. Sui generis protection has been obtained for semi-conductor chips and “literary works” generated by computers, whereas Indigenous peoples have insufficient power to protect even their most sacred plants, places, or artefacts. (vii) they are expensive, complicated, and time-consuming to obtain, and even more difficult to defend. |
| 3.3 | Intellectual property rights in the global economy |
| The Trade-Related Aspects of Intellectual Property Rights (TRIPs) section of the GATT Treaty is intended to harmonise national IPR regimes and create what Northern countries call a “level playing field”. Assuming all Nation States comply fully with TRIPs, national regimes will be virtually identical to the current United States system. Opponents feel that this will allow the United States, Europe and Japan to dictate trading rules. GATT, and the new World Trade Organisation (WTO) that will implement it, have served to stimulate interest in IPRs. Article 27 (“Patentable Subject Matter”) provides for one interesting option, that of an “effective” sui generis system for plant variety protection. The call for countries to define their own system of protection is an opportunity to introduce a community- based rather than individual-based system. It is unclear what “effective” means, although some countries are making efforts to define their own alternative systems (e.g. Brazil, India, the Andean Pact). Indigenous peoples are vociferous in their opposition to GATT/TRIPs with or without a sui generis option (see 4.3). They feel that the globalisation of trade weakens even further their political and economic influence, while undermining traditional systems of biodiversity conservation (Gray 1990b; Mead 1993). |
| 3.4 | Biopiracy |
| Northern governments and multinational corporations have been successful in pressuring the rest of the world to accept the argument that extended and strictly-enforced IPR regimes are necessary and mutually beneficial. Sometimes by persuasion - and at other times by threats - Southern governments have acquiesced to this view. Piracy of books, designs, trademarks, recordings, and computer programs, as well as illicit sales of pharmaceuticals, have been major targets for attack. Recently, the Rural Advancement Foundation International (RAFI) has shown how corporations themselves have pirated biogenetic resources and knowledge. Small farmers and Indigenous peoples have begun to attack institutions and companies involved in this “biopiracy”. Use and and abuse of IPRs show that: (i) Although industries seek legal monopoly for their applications of traditional knowledge and resources, Indigenous peoples cannot obtain the same protection. (ii) Well-meaning scientists involved in non-commercial research become implicated when their data are published or collections made available for commercial interest. (iii) Many biodiversity-rich countries lack the capacity to adequately exploit the commercial potential of their most valuable resources. (iv) Even when governments or national scientists benefit from new product development, local communities rarely see even “trickle down” benefits. (v) “Free access” has a negative effect on the environment as well, since local communities have no control over exploitation. |
| 4. | Indigenous Views |
| In recent years Indigenous peoples have become well organised, articulate and politically astute. Their views are widely cited and have come to represent the concerns of local communities - Indigenous and non-Indigenous - around the world. Sometimes the term “broader alliance” is used in reference to a political coalition with traditional farmers, foresters, gatherers, fisherfolk, and herders. Increasingly, however, the alliance is growing to include other citizens worried about biosafety, erosion of local institutions, loss of freedom, and environmental degradation. Indigenous peoples feel that “development” has been imposed upon them in ways that violate their rights and damage the environment. According to the (1992) Indigenous Peoples’ Earth Charter. |
| The concept of development has meant the destruction of our lands. We reject the current definition of development as being useful to our peoples. |
| They also believe that they have an important role to play in conservation. According to the (1995) Final Statement of the Regional Consultation on Indigenous Peoples’ Knowledge and |
| 10 |
| Intellectual Property Rights, Suva, Fiji: |
| We assert that `in situ’ conservation by Indigenous peoples is the best method to conserve and protect biological diversity and Indigenous knowledge, and encourage its implementation by Indigenous communities and all relevant bodies. |
| However, they demand that recognition of this role be used to support territorial and other rights. The (1992) Charter of the Indigenous-Tribal Peoples of the Tropical Forests (CITP) states that: |
| The best guarantee of the conservation of biodiversity is that those who promote it should uphold our rights to the use, administration, management and control of our territories. We assert that guardianship of the different ecosystems should be entrusted to us, Indigenous peoples, given that we have inhabited them for thousands of years and our very survival depends on them. |
| Indigenous societies honour the principle of free exchange and do not necessarily want to close themselves off from others. The CITP declares that: |
| Indigenous peoples are willing to share our knowledge with humanity provided we determine when, where and how it is used. At present the international system does not recognise or respect our past, present and potential contributions. |
| The CIPT condemns: |
| those who use our biological diversity for commercial and other purposes without our full knowledge and consent. |
| The (1993) Mataatua Declaration on the Cultural and Intellectual Property Rights of Indigenous Peoples adds further restrictions to use of traditional resources: |
| Indigenous flora and fauna is inextricably bound to the territories of Indigenous communities and any property right claims must recognise their traditional guardianship. Commercialisation of any traditional plants and medicines of Indigenous peoples must be managed by the Indigenous peoples who have inherited such knowledge. A moratorium on any further commercialisation of Indigenous medicinal plants and human genetic materials must be declared until Indigenous communities have developed appropriate protection measures. |
| Existing IPRs are not viewed by Indigenous peoples as adequate to implement “appropriate protection measures”. According to the Statement from the (1994) COICA Regional Meeting on Intellectual Property Rights and Biodiversity in Santa Cruz, Bolivia: |
| For Indigenous peoples, the intellectual property system means legitimisation of the misappropriation of our peoples’ knowledge and resources for commercial purposes. |
| Therefore: |
| There must be appropriate mechanisms for maintaining and ensuring rights of Indigenous peoples to deny indiscriminate access to the resources of our communities |
| 11 |
| or peoples and making it possible to contest patents or other exclusive rights to what is essentially Indigenous. |
| As regards biodiversity prospecting and patenting life, the Pacific Regional Consultation’s Final Statement calls for “a moratorium on bioprospecting in the Pacific” and urges Indigenous peoples “not to co-operate in bioprospecting activities until appropriate protection measures are in place”. Delegates also agreed on “the establishment of a treaty declaring the Pacific Region to be a life-forms patent- free zone” including in the treaty “protocols governing bioprospecting, human genetic research, in situ conservation by Indigenous peoples, ex situ collections and relevant international instruments.” Indigenous peoples feel threatened by the world trade system, especially since the Uruguay Round negotiations first included discussions on trade-related IPR. Shiva (1994) observes that GATT/TRIPs: |
| has failed to recognise the more informal, communal system of innovation through which Third World farmers produce, select, improve and breed a plethora of diverse crop varieties. |
| The Pacific Regional Meeting urges: |
| those Pacific governments who have not signed the General Agreement on Tariffs and Trade (GATT) [should] refuse to do so, and encourage those governments who have already signed to protest against any provisions which facilitate the expropriation of Indigenous peoples’ knowledge and resources and the patenting of life forms. |
| According to M. Idris, Chairman of Third World Network (1995), a grouping of organisations and individuals involved in Third World issues: |
| Our governments must oppose the TRIPs agreement of the Uruguay Round...that protects the intellectual pirates by giving them the title “intellectual property owners”. |
| 5. | Governments and Nation States |
| Some Nation States are responding through discussions on appropriate legislation intended to establish equitable terms for granting access to biogenetic resources and sharing benefits with Indigenous peoples. |
| 5.1 | The Andean Pact |
| Model laws are being considered by the Andean Pact countries (Bolivia, Colombia, Ecuador, Peru and Venezuela) for the conservation and sustainable use of biological material used as a source of genetic resources. Member States are permitted to set terms for access to their biological resources that may include the following: sharing of benefits between receivers of |
| 12 |